Taking Liberties: The New Assault on Freedom

Freedom is falling out of fashion all across the political spectrum, and new moves by Congress and the courts threaten basic liberties.

"Free speech is a bourgeois prejudice," Lenin explained to Emma Goldman in 1920. If only it were so. With the approval of the bourgeois press and public, Goldman had been deported to Russia in 1919, after serving two years in prison for criticizing the U.S. government during wartime and opposing mandatory conscription. The American bourgeoisie—intolerant of free speech—strongly supported the prosecution, imprisonment, and exile of pacifists, anarchists, socialists, and other dissidents who opposed America's entry into the First World War.

In wartime, the federal government criminalized mere rhetorical exhortations and expressions of unpopular ideals. The Espionage Act, enacted in 1917, prohibited willful interference with recruitment, enlistment, or service in the military, which was broadly construed to include political advocacy. In most instances, the Supreme Court upheld these draconian wartime restrictions on speech. But the Espionage Act cases also helped to transform Justice Oliver Wendell Holmes into a free speech advocate, and he, in turn, once converted, helped shape the freedoms that antiwar protesters eventually enjoyed in the 1960s. Since the 1920s, the Court has greatly expanded rights of political advocacy and has successfully invoked the Con stitution to protect individuals against arbitrary government power.

Progress has hardly been steady; leftists were prosecuted in the 1950s, under the Smith Act, for advocating overthrow of the government or merely associating with other rhetorical enemies of the state. The rights revolution proceeded sporadically; it did, however, proceed, as the Court began enforcing the Bill of Rights and applying it to exercises of state as well as federal power.

But while new guarantees of liberty emerged out of the repression of World War I, so did the modern American security state. J. Edgar Hoover got his start persecuting anarchists and other idealists, like Emma Goldman, and for much of this century, descendants and defenders of World War I dissidents have been battling Hooverism, with some success. Women and members of racial, ethnic, and religious minorities have gained unprecedented legal rights since mid-century, and on balance you are probably better off being arrested today than in 1960, before the issuance of landmark Supreme Court decisions protecting the Fourth, Fifth, and Sixth Amendment rights of criminal suspects. Looking back, we are better off today than we were 50 years ago. What's worrisome is looking ahead.

Left and right, freedom is falling out of fashion. Advocates of free markets will exclaim that freedom has been out of fashion for decades, and it's true that economic liberties have been sacrificed to the public interest in safe, humane, nondiscriminatory workplaces. Civil libertarians, who tend to be liberal, usually applaud the trade-off, since most are not sanguine about the virtues of economic liberty. Economic inequality, which unfettered liberty ensures, is a bar to the equal enjoyment of rights—that is the dilemma confronting liberal rights advocates. So, the ACLU (of which I'm an active member) does not go to court to protect the rights of employers to hire and fire whomever they choose. Instead, it tends to value civil rights and civil liberties equally, despite the fact that they sometimes conflict. (If you're looking for a consistent commitment to preserving all forms of individual liberty, join the Cato Institute.)

But if liberal civil libertarians lack ideological purity, they started and sustained the expansion of individual liberty that has distinguished most of this century. Today, however, they constitute only a small minority. Eager to punish hate speech, prove their toughness on crime, or express their horror at illegal drugs or internet smut, many liberals today cannot be trusted to defend the Bill of Rights. Some feminists, outraged by pornography or the rights of rape suspects, foolishly dismiss it as a tool of male oppression. Among liberal political theorists, communitarianism is more fashionable than any commitment to individual rights. Liberal politicians have generally sped toward the center, following the lead of Bill Clinton, who has been uncharacteristically constant in his hostility toward civil liberties.

Meanwhile, conservatives have chosen the imposition of moral absolutes over autonomy and individual choice—except when they're talking about guns, or the freedom to discriminate. The NRA's respect for the liberty of gun owners has made it sensitive to Fourth Amendment violations. (The Fourth Amendment is a formidable bar to gun control.) But in its anxiety to appear tough on crime, since it is soft on guns, the NRA has fashioned a regressive criminal justice agenda, and it lacks a broad commitment to individual rights. NRA leaders seem to believe that once you ensure the right to own a gun, all other rights will inevitably follow.

But while guns are proliferating, rights are dwindling. The political climate that marked the early 1900s may loom in our future as well as our past; the 1990s have been marked by renewed restrictions on civil liberties—notably free speech and privacy—and by assaults on the rights of criminal suspects, people convicted of crimes, immigrants (including those guilty of nothing more than wishing to enter this country), and poor people. Many of the worst violations of liberty have been implemented by federal legislation, either championed or conspicuously unopposed by the Clinton administration. Many freedoms, particularly those secured by the Fourth Amendment, have fallen as sacrifices to the war on drugs. Local legislation, like anti-gang laws, threatens basic liberties of movement and association; de facto police practices, like racial profiling on the highways, add to de jure abuses of power. Abusive prosecutorial practices (which marked the Starr investigation) are distressingly common, although usually hidden from public view. Meanwhile, technology makes surveillance easy and practically commonplace. A comprehensive review of repressive or unduly intrusive laws and practices could spawn a small encyclopedia. (This article will simply highlight a few.) We don't yet inhabit a police state, but you don't have to be paranoid to imagine one taking shape.

Court Stripping

Federal courts, which have been essential in expanding and preserving individual rights, are being stripped of their power to review the actions of federal law enforcement agencies, state courts, and state prisons. Court stripping, regularly decried by civil libertarians, represents a wholesale assault on liberty and due process, not to mention the constitutional system of checks and balances: if courts lose jurisdiction to hear cases involving constitutional violations, they lose the power to police Congress and enforce the Bill of Rights.

Congressional efforts to limit the power of the federal courts are not new. The 1960s, 1970s, and 1980s saw efforts to strip the courts of jurisdiction in busing, abortion, and school prayer cases—all of which involve fundamental constitutional rights. All of these efforts failed. Barry Goldwater dismissed one proposal by Jesse Helms to disallow federal review of school prayer cases as the equivalent of "outlawing the Supreme Court." "Did you really write this bill?" Goldwater reportedly asked Helms. "If I wrote it, I would be ashamed."

But Goldwater's conservatism is an anachronism today, and so is his sense of shame. In the past several years, Congress has eroded judicial authority by passing laws that eliminate or greatly limit judicial review and by refusing to confirm appointments to the federal bench. (You don't have to deprive the courts of jurisdiction to hear cases if you simply deprive them of judges.)

Some of the most grievous limitations on jurisdiction were contained in counter-terrorism and immigration reform laws enacted in 1996. These laws practically suspended the writ of habeas corpus in many criminal cases, depriving federal courts of considerable power to review state court convictions, especially in capital cases; and they gave federal officials virtually unchecked power to prosecute and deport legal residents and turn away people trying to enter the country.

Under the 1996 immigration law, Immigration and Naturalization Service (INS) officials may summarily deport people seeking political asylum. INS decisions about asylum used to be subject to challenge in federal court. Now individual border patrol agents have the power to make instant, unilateral life and death decisions about whether someone seeking entry is likely to be subject to death, torture, or imprisonment on returning home. Human rights advocates have pointed out that the new law is particularly insensitive to torture victims, who are often too traumatized by their experiences to recount them readily to INS officials. (The INS has been summarily expelling an estimated 1,200 people each week.)

Immigration officials have also been rounding up legal residents convicted of relatively minor offenses. Immi grants convicted of serious, violent crimes have long been subject to deportation, but now offenses like drunk driving and shoplifting, even if committed years ago, may make a long-term resident with an American family deportable, at the whim of INS agents. The new law gives immigration judges no discretion to consider factors like family ties and a generally law-abiding history that mitigate against deportation.

Court stripping creates classes of dictatorial bureaucrats who are accountable only to themselves—a hallmark of police states. The 1996 counter-terrorism bill also empowers the attorney general to try suspected terrorists, or people suspected of associating with terrorists, on the basis of classified evidence. In other words, federal officials can prosecute and deport people without telling them exactly why, and without giving them an opportunity to face their accusers and deny or counter the charges against them. Currently, according to a report in the New York Times, more than two dozen people are facing deportation or exclusion on the basis of secret evidence offered by secret accusers. Many of these people are accused only of associating with terrorists. All of those accused are Arab, Arab-American, or Muslim.

Terrorism Meets Nativism

As these cases illustrate, the Clinton administration has used its power under the 1996 immigration law to attack fundamental political rights of speech and association in the name of protecting us from dangerous foreigners. Emma Goldman might feel depressingly at home in America today. But ignoring the First Amendment was much easier 80 years ago—the Supreme Court had not yet given it life. Today, the government must bypass the federal courts, which enforce the First Amendment, in order to have their way with it. And bypassing the courts is precisely what the administration claims the 1996 immigration law empowered it to do.

Consider the Clinton administration's action in the nearly ten-year-old case of Reno v. American-Arab Anti-Discrimination Committee. This case began in the late 1980s when the Bush administration tried to deport a group of seven Palestinians and one Kenyan, legally residing in California, for engaging in protected, political advocacy on behalf of the Palestinians. A series of federal court rulings have enjoined the deportations on First Amendment grounds. The government is now seeking review in the Supreme Court, arguing that the 1996 immigration law deprived the federal courts of the power to hear the constitutional claims in this case and enforce the First Amendment.

The Supreme Court has yet to rule on the constitutionality of the court-stripping measures contained in the 1996 immigration and antiterrorism legislation. Several constitutional challenges have been wending their way through the federal court system, however, and the Second and Ninth Circuit Courts of Appeals have struck down provisions denying judicial review to legal as well as illegal immigrants facing deportation. The administration, apparently eager to continue summary deportations, is expected to seek Supreme Court review of these decisions.

Where did Congress and the administration find the chutzpah to decide that the executive branch of government should not be held to account by the federal judiciary when it arguably violates fundamental constitutional rights? In part, they exploited public obliviousness to questions of checks and balances. Few voters have likely thought through the complexities of the separation of powers between the three branches of government since they were in high school. In part, politicians, especially on the right, tap into deep popular resentment of "activist" federal judges who enforce some unpopular rights claimed by unpopular individuals (like criminal defendants). And, in part, court-stripping legislation was presented as a form of terrorism control.

New fears of terrorism combined with old-fashioned nativism lent public support to immigration and counter-terrorism laws, which were enacted in the wake of the Oklahoma City bombings. An Associated Press poll conducted shortly after the bombing found strong majority support for preemptive government action against suspected or "potential" terrorists. According to an AP story of May 4, 1995, 63 percent of people surveyed favored giving the FBI power to infiltrate and spy on potential terrorist groups, without evidence of a crime. Generally, 54 percent believed that the government should try to stop terrorists, even if it intruded on some people's rights. Of course, it's hard to imagine many people saying that the government should not try to stop terrorism, even at the cost of some unspecified rights. The majority's response to the AP poll presumes that counter-terrorism measures will succeed. Only a minority of people surveyed (19 percent) said that government violations of rights were fruitless because officials could not stop determined terrorists. (Twenty-one percent found violations of rights unacceptable.)

Whose Liberties?

But the AP poll begs the question: How can the government successfully identify and prevent terrorist activity? Does public safety require the violation of the rights of "some people"? And whose rights are they anyway? Usually when people support law enforcement measures that violate some people's rights, they mean other people's rights, not their own. What makes a civil libertarian is the capacity to imagine yourself as the accused, not the accuser.

It's no coincidence that repressive law enforcement measures often begin by targeting unpopular groups in society—groups with which majorities of voters are least likely to identify and most likely to consider "other people." If the majority of voters feared being arrested more than they feared being victimized by crime, the rights of criminal suspects and prison inmates would be secure. (As I've often said, if a conservative is a liberal who's been mugged, a liberal is a conservative once arrested.)

But the majority of voters, it seems, do not expect that they or their family members will ever be subject to abusive arrests and prosecutions and wrongly convicted of crimes. Instead, fear of being victimized and fury over violent crime prevail. The belief that we should treat people accused or convicted of crimes the way we would like to be treated in similar circumstances is easily defeated by the contrary impulse to treat violent criminals the way they have treated their victims. So there is strong majority support for the death penalty (although it weakens when people are presented with the alternative of life without parole) and a drive to expedite executions. Congress and the President seemed in tune with popular opinion when they enacted the Antiterrorism and Effective Death Penalty Act of 1996, which eviscerated the writ of habeas corpus and the power of federal courts to review the constitutionality of convictions by state, especially in capital cases. Included in the 1996 Counter-Terrorism Act, it is sure to have virtually no ameliorative effect on terrorism: most death penalty cases involve indigent defendants convicted of decidedly nonpolitical, often impulsive, random homicides.

State prison officials have also been relieved of considerable federal oversight. The Prison Litigation Reform Act (PLRA), passed in 1995, ensured that in most cases involving prisoner's rights the federal courts would no longer be able to use consent decrees—the most common and effective vehicles for correcting unconstitutionally brutal conditions in state prisons. Like most court-stripping measures, the PLRA does not deprive people of their constitutional rights in theory; it simply deprives them of their remedies when rights are violated. The stated purpose of this law was to curb frivolous suits by prisoners; its primary effect will be to facilitate their brutalization.

Still, the PLRA was a popular law, perhaps because many people believe that prisons are like motels with good gym facilities and color TVs, or because prisoners are not generally considered deserving of human rights. This tendency to dismiss any group of people as less than human can eventually threaten everyone's freedom: repressive regimes depend on the belief that people have to deserve or earn their rights. Americans are supposed to believe that rights are inalienable. Of course, people sentenced to prison are necessarily deprived of some very basic freedoms and rights, but they should surely retain the rights to be treated humanely.

You don't have to be imprisoned, however, to lose many fundamental rights. You could simply lose all your money. It's not only a free press that belongs to those who own one, as A. J. Leibling famously remarked. Abortion rights and the rights to a fair trial, for example, are much more readily available to rich people than poor. Thanks to recent congressional efforts to defund and de-fang the Legal Services Corp oration, poor people have even fewer enforceable constitutional rights against the government. Funding restrictions bar legal services programs that receive any federal aid from challenging the constitutionality of welfare reform legislation, even if the challenges themselves are privately funded. Legal services lawyers are also prohibited from bringing class actions, which enforce people's rights on a grand scale, and they are not allowed to lobby (in other words, advocate for their clients' rights before legislatures).

These restrictions on legal services (which the ACLU has asked the Supreme Court to review) are not exactly court stripping, but they do have a similar effect: they decrease the accountability of executive and legislative actions. Instead of stripping the courts' power to hear cases involving the rights of poor people, Congress simply stripped advocates for the poor of the power to bring cases. You don't have to regard the restrictions on legal services lawyers as a form of political repression in order to recognize it as another way of immunizing elected officials and bureaucrats from constitutional limitations on their behavior.

The fight to maintain liberty is, from one perspective, a fight to prevent agents of the state from exercising arbitrary, unaccountable power. Unlike the cops, say, of NYPD Blue, real-life law enforcement agents do not have an unerring instinct for only abusing the rights of guys who turn out to be guilty. In Maryland, on Interstate 95, for example, state troopers have targeted innocent African-American motorists for "random" searches as part of the war against drugs, for the de facto offense of driving while being black. The searches are not mere inconveniences: people are pulled over and asked, with varying degrees of belligerency, to "consent" to thorough searches of their cars and everything in them. If they decline, they are not free to leave; they are forced to wait on the side of the road for the arrival of drug dogs, who sniff and paw through their belongings and sometimes urinate in their cars.

Because it affects so many innocent people, and because it is clearly discriminatory, racial profiling is difficult to defend. So police are apt to deny that they engage in it when they are threatened with legal action. Courts do maintain their power to enforce the Fourth and 14th Amendments in cases like these, after all. In 1993, without acknowledging guilt, the Maryland State Police settled a lawsuit brought by the ACLU of Maryland on behalf of an African-American attorney, Robert L. Wilkins, who was stopped and searched while driving on I-95 with his family. In 1996 the ACLU went back to court, charging the Maryland State Police with continued discriminatory enforcement; relying on the state's own computerized records (now maintained under court order), the ACLU found that 75 percent of motorists searched by police are black, while 20 percent of motorists searched are white; but 75 percent of traffic violators on I-95 are white and only 17.5 percent are black. The great majority of these searches do not uncover evidence of crime, and statewide in Maryland, equal percentages of black and white motorists (about 28 percent each) are caught with illegal drugs.

Imagine the outcry if middle-class white motorists were routinely subjected to degrading, highly intimidating, intrusive, and fruitless random drug searches like those conducted by the Maryland State Police. Many of them would not consider charges of "Gestapo" tactics mere hyperbole. The Maryland case is not only about racism; it is about police practices that violate the basic freedom to venture out in public and travel without risking arrest.

Loitering and Liberty

The right to stand still in public is also under attack. Anti-loitering laws are being extolled by cities across the country as effective anti-gang measures. A case now before the Supreme Court, Chicago v. Morales, will determine whether the freedom to engage in conversation on a public street must be sacrificed to a war against gangs. Morales involves a challenge to a Chicago ordinance providing that "whenever a police officer observes a person whom he reasonably believes to be a criminal street-gang member loitering in any public place with one or more persons, he shall order all persons to disperse and remove themselves from the area." People who disobey the order are subject to arrest.

The Illinois Supreme Court held that the ordinance was impermissibly vague on its face: it does not adequately define loitering so as to provide people with notice that their activities (or inactivities) are prohibited. Loitering turns out to be a bit like impeachment: it means whatever a police officer says it means. The Illinois court also held that the ordinance constituted an unreasonable and arbitrary interference with civil liberty. It abridges First Amendment rights of speech and association, as well as Fourth Amendment rights not to be arrested without reason; indeed, ordinances like these are aimed at empowering police to arrest people who do not appear to be engaged in any illegal activities. As the city of Chicago acknowledged, the ordinance is supposed to "stop crime before it occurs."

It should hardly need to be stressed that in a free society, the police enjoy the power to arrest you only after you have committed a crime, not before. Laws like the one at issue in the Morales case do not just invite discriminatory enforcement; they endorse it, encouraging police to rely on their own biases (or suspicions) when applying the law. (While the anti-loitering law was in effect in Chicago, police arrested more than 43,000 people. Most were African American and Hispanic; many did not belong to gangs.) It's worth noting that the Supreme Court struck down broad-ranging anti-loitering laws during the civil rights movement, when they were used by police to disperse people protesting segregation. It would be a sad irony indeed if three decades later, the Court effectively reversed itself and upheld loitering laws used primarily against black and Hispanic youth.

The Supreme Court's previous decisions on anti-loitering and vagrancy laws are no less compelling today. In the 1965 case of Shuttlesworth v. City of Birmingham, the Court invalidated the arrest of a civil rights activist, Fred Shuttlesworth, for standing in a small group of people outside an all-white department store. Shuttlesworth was arrested under a law that prohibited standing on a street or sidewalk "after having been requested by any police officer to move on." Taken literally, Justice Potter Stewart observed, this meant that "a person may stand on a public sidewalk in Birmingham only at the whim of any police officer of that City. The constitutional vice of so broad a provision needs no demonstration. . . . That kind of law bears the hallmark of a police state."

Shuttlesworth's arrest was invalidated, but the statute at issue in his case was saved by the narrow construction of it offered by the Alabama courts. A few years later, however, the Court struck down Jacksonville, Florida's anti-loitering and vagrancy laws, ending an era in policing that anti-gang ordinances threaten to revive. In the 1972 Florida case Papachristou v. City of Jacksonville, the Court warned that because they encompassed innocent pastimes (like talking to your friends), these laws invested police with unfettered discretion. "Where the list of crime is so all-inclusive and generalized . . . those convicted may be punished for no more than vindicating affronts to police authority," Justice William Douglas wrote for the majority.

Chicago's anti-loitering ordinance would not survive Justice Douglas's vision of civil liberty—and it did not survive in the Illinois courts. The Morales case will tell us if the Supreme Court still sees the preeminent value of liberty. The rights at stake in Morales are not marginal. They define citizenship in a free society. Or, as Douglas remarked, they are "historically part of the amenities of life as we have known them . . . . They have dignified the right of dissent and have honored the right to be non-conformists and the right to defy submissiveness. They have encouraged lives of high spirits rather than hushed, suffocating silence."

Ceding Liberty to Purity

The trouble is that many people are becoming accustomed to submitting to authority in the hope of remaining safe. Most of us trudge sheeplike through airports, readily complying with all the demands of low-level security personnel, who are themselves applying, without question, the dictates of their superiors. All of us display our government-issued photo IDs before boarding a plane. Terrorists no doubt have access to fake licenses and passports, but the photo ID requirement enables airlines to catch passengers using other people's discount tickets. An unlucky few, especially those with Middle Eastern names, are subjected to thorough searches of their belongings, and, on occasion, stripped and subjected to full body searches. Meanwhile, effective security measures, like full luggage matching, which would ensure that everyone who checks a piece of luggage boards the plane, have yet to be implemented.

Intrusive, faux security measures at the nation's airports may eventually be challenged in court. If court-stripping efforts are ultimately invalidated by the Supreme Court, the federal courts will retain the power to preserve individual liberty (although there is no telling how they'll exercise it). But the court system itself cannot withstand a concerted legislative attack on its power. In the end, Congress can bypass the courts by amending the Constitution, as it has lately been endeavoring to do.

In interpreting and enforcing the Bill of Rights, the courts have usurped the political power of majorities, former Nixon aide Charles Colson has written, with some accuracy. The courts have indeed denied majorities the power to repress minority rights. In my view, the federal courts have kept faith with the Constitution. In Colson's view they have broken a covenant with God: their usurpation of political power "compels evangelical Christians and, indeed, all believers to ask sobering questions of the current political order and our allegiance to it."

A war against the courts and the Constitution is already underway. Stymied by the Supreme Court's approach to religious liberty, the religious right has lobbied hard for a constitutional amendment allowing school prayer. (A prayer amendment was defeated in the House last spring.) Chafing at the rights afforded criminal suspects, Congress has proposed a Victims' Rights Amendment, to qualify the rights of the accused and to undermine the fundamental purpose of the Bill of Rights—preventing abuses of government power by imbuing people prosecuted by the Supreme Court with enumerated rights. Unhappy with a recent Supreme Court decision upholding the First Amendment right to burn a flag as a form of political protest, Congress nearly passed a constitutional amendment qualifying the First Amendment and criminalizing flag desecration. It is likely to come before the Senate again next session and may well pass.

The flag desecration amendment is the equivalent of the World War I Sedition Act, which criminalized "scurrilous" or "abusive" speech against the government (except that unlike a censorious law, a censorious constitutional amendment is quite unlikely to be repealed). Burning a flag is political dissent, as the Supreme Court has recognized, but the prohibition of flag desecration is often extolled by its advocates as a means of establishing and preserving community. They even characterize it as an effort to instill tolerance for community values, as some Muslim fundamentalists characterized the Fatwa against Salman Rushdie as an effort to achieve religious tolerance.

"National unity" can only be achieved through persuasion, not coercion, Chief Justice Robert Jackson stressed in a 1943 case, upholding the right of Jehovah's Witnesses not to salute the flag. Writing during World War II, when the consequences of coercive nationalism were horrifyingly clear, Jackson (later the Nuremberg prosecutor), observed that "those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Com pulsory unification of opinion achieves only the unanimity of the graveyard." At the risk of seeming trite, Jackson added, it seemed necessary to say that the First Amendment "was designed to avoid these ends by avoiding these beginnings." The flag desecration amendment will take us back to the beginning of this century, when dissent was punishable by imprisonment.

The flag amendment, which has been championed by the right, testifies to the corruption of contemporary conservatism, which is supposed to respect individual liberty. Indeed, when opposing affirmative action and other civil rights initiatives, conservatives like to point out that the Constitution protects individual rights, not group rights. Yet, they insist, the community's right not to be offended by a flag burning trumps the individual's right to engage in offensive political speech, however peaceful. That, of course, is the philosophy of political correctness, usually advanced by the left.

Abandoned by liberals and conservatives alike, liberty languishes. Outside the ACLU or the Cato Institute (or the militia movement) few people even talk about liberty anymore. When did you last hear a mainstream political candidate promise to make the preservation of freedom a priority?

"The average man doesn't want to be free," H. L. Mencken asserted. "He simply wants to be safe." Mencken was exaggerating: the average man (whoever he may be) probably wants both safety and freedom but can be persuaded to sacrifice the latter to the former. Individual rights are routinely characterized as threats to our collective security, which is why restricting the rights of criminal suspects, pornographers, flag burners, and immigrants, young African-American and Hispanic males, and millions of air travelers enjoys public support.

But most of the repressive laws and practices recently thrust upon us make us less free without making us more safe. Racial profiling on the highway will not decrease the violent trafficking in illegal drugs or problematic drug use (although decriminalization might). Depriving federal courts of the power to ameliorate inhumane conditions in state prisons will not deter people from committing crimes increasing fear of prison life; instead it may well increase the likelihood that those released from increasingly violent prisons will commit new, violent offenses. Some repressive police practices may prevent crime, of course: you can decrease street crime if you eliminate the right to venture out in the street. But if some criminals are easily controlled in police states, others, like abusive law enforcement agents, are unleashed.

Recent restrictions on individual liberty are not, however, simply aimed at making us more secure; they're supposed to make us more pure. What's striking about repression in America today is the moralism that drives it. On the left, champions of political correctness at war with the First Amendment aim to rid individuals of bad attitudes toward select, historically victimized groups. On the right, aspiring theocrats want us to be ruled not by our own consciences or individual proclivities but by their understanding of Scripture. The underlying assault on the federal courts is a jihad, as Charles Colson's rhetoric makes clear.

For much of this century, we progressed toward freedom, however erratically. Now freedom is condemned as a rejection of God. The message is familiar. Moralism, combined with an intolerant religiosity, is an American perennial, as Mencken gleefully observed. But if the current wave of repression is not unprecedented, it is, at the very least, depressing. You need the passion of Emma Goldman, or the misanthropy of Mencken, to feel inspired by it.

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About the Author

Wendy Kaminer is a former senior correspondent for The American Prospect and a contributing editor at The Atlantic Monthly. She also serves on the national board of the American Civil Liberties Union.

A lawyer, social critic, and former Guggenheim Fellow, she writes about law, liberty, feminism, religion, and popular culture. Her latest book is Free for All: Defending Liberty in America Today. Other books she has written include Sleeping with Extra-Terrestrials: The Rise of Irrationalism and Perils of Piety; True Love Waits: Essays and Criticism; It's All the Rage: Crime and Culture; I'm Dysfunctional, You're Dysfunctional: The Recovery Movement and Other Self-Help Fashions; and A Fearful Freedom: Women's Flight from Equality. Kaminer's articles and reviews have appeared in many other publications, including The New York Times, The Wall Street Journal, The Nation, and Newsweek, and her commentaries have aired on National Public Radio.

Before embarking on her writing career, Kaminer practiced law as a staff attorney in the New York Legal Aid Society and the New York City Mayor's Office.